Opposition Brief — Chicago, Burlington & Quincy Railroad v. Bonnier

cory &®Ooyes CLOSE wm CEMTT:

INDEX.

Argument ............. . ssneipectplitaaianlinntareannsiiabihieiniatinhinnhmadintiie

I. Not only was the question of illegality of con-

duet not before the court of review, but the

decision of the [linois Supreme Court is a

reiteration of a doetrine fundamental in the law

of torts. There is no inconsistency between its

decision and any pertinent Federal Statute

Il. There was strong and undieputed evidence of

negligence: Petitioner's argument it was not

guity as a matter of law ix without foundation

in the authoritie< en TEA

In re Failure to hare the handbrakes set

In re Pailare to have a rider on the cars __.

The Petitioner owed the Respondent the duty

to exercise reasonable care to provide him with

a safe place within which to work

Conelusion

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iii

AUTHORITIES CITED.

Cases.

Blanchard v. Lewis, 414 Ill. 515, 112 N. E. 2d 167. ....

Brinkmeier v. Missouri P. Ry, Co., 224 U.S. 268. ........

Butz v. Union Pac. R. R., 233 Pac. 2d 332. a

a A ey Pe

Chesapeake & Ohio R. R. Co. v. Kelly, 241 v. S. 48

Chesapeake & Ohio R. R. Co. v. Mihas, 380 U.S

Chesapeake & Ohio R. R. Co. v. Nixon, 271 U.S. noo _

Hamilton v. Southern Ry. Co., 158 S. E. 75, cert, de-

nied 284 U. S. 636.

Higgins v. McCrea, 116 U.S. 672. o..c.oc.c cc ccccccecccccoeees-ss...

Hunt v. Wheat, 289 Fed. 604. 20000

Lerette v. Director General of Railroads, 306 Ill. 348,

Ti IE" eal ieee en i re

Meador v. Hotel Grover, 9 So. 2d 782.0...

Milwaukee & S. P. Ry. v. Kellogg, 94 U.S. 469, 474, .

Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S

Stl Sisiaslandtinteninhnaniiaaidideiecdseiniem ication jo et st

Northwestern Oil Co. v. Socony-Vacuum Oil Co., 138

ee es eee ia

Oseanyan v. Armas Co., 103 U.S, 261...

Rapee v. Beacon Hotel Corp., se N. See

‘Sea SO + le ee B

2d 620,

——

Sola Elec. Co. v. Jefferson Electric Co., 317 U.S. 173. ..

10

conccseseucessasstenessessesesesseneessecesecesetecseeszecenees 10

Star Demtes Co. v. Hauck, 222 Ill. 348, ll

Sumney v. So. Ry. Co., 89 Fed. 2d 437. 16

Tennant v. Peoria and P.U. =,on 0.8.9 14

Terminal R. R. v. Schorb, 151 Fed. 2d _ 19

Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468,

470. 19

Texas & Pac. Ry. Co. v. Archibald, 170 U. S. 665, 673. 17

Texas & Pac. Ry. Co. v. Behymer, 189 U. S. 468, 470, ... 18

Texas & P. Ry. Co. v. Behymer, 189 U. S. 468, 470... 17

Tiller v. Atlantic Coastline, 318 U.S. 54. 14

Tiller y. Atlantie Coast Line R. R., 318 U. S. 54; 323

U. 8. 579. ; 15

Toledo, St. L. & W. Ry. Co. v. Allen, 276 U. S. 165. _. 15

U. P. R. v. Hadley, 246 U. S. 330, 16

Wain v. Kravitz, 324 III. App. 488, 491, 58 N.E. 2d

ONO Stasi letaetiechcelttetapipscicdancicaseascses-........... 4

Wilkerson v. McCarthy, 336 U.S. SS a 14

Wilkerson v. McCarthy, 336 U.S. a ee 14

Wilkerson v. McCarthy, 336 U.S. 53... 19, 20

STaTuTEs.

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IN THE

SUPREME COURT OF THE UNITED STATES

Ocroper TRM, 1954.

No. 216

CHICAGO BURLINGTON & QUINCY

RAILROAD COMPANY,

Petitioner,

vs.

EDWARD BONN IER,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION.

Questions Presented.

1. Can an employer in an action under the Federal

Employers’ Liability Act (Title 45 U.S.C.A., See. 51, et

seq.) assert for the first time in a court of review

as a defense to an employee’s action based on negli-

gence that the employee, admittedly engaged in perform-

ing the employer’s work, was violating a federal law

and cannot recover?

2. Can a defendant in a Federal Employers’ Liability

Act action resort to the term **non-negligence”’ when it

is in fact defending the employees action on the basis of

contributory negligence and of assumption of risk?

Soe

ng

cans

Statement of the Case.

This case was tried twice. On the first trial there

was a verdict of $188,333.33. Petitioner’s motion for new

trial was allowed, but its motion for judgment notwith-

standing the verdict was denied. Upon the second trial,

there was a verdict of $70,000.00. Petitioner made no

motion for new trial, but merely for judgment notwith-

standing the verdict. (Pet. App. p. 26.)

The Respondents complaint alleged certain acts of neg-

ligence on the part of the Petitioner. (R. 58, Abst. 2, 3.)

Petitioner’s answer denied, inter alia, the charges of

negligence, and alleged contributory negligence on Re-

spondent’s part. (R. 63, Abst. 6) Petitioner’s answer con-

tained no charge that Respondent or Respondent and

Petitioner were engaged in any illegality of act, although

Illinois procedure specifically requires the pleading of

any statute relied upon. (Chap. 110, See. 259.13, Ill. Rev.

Statutes) This is counter to Petitioners statement that

‘“*the federal questions were raised in the trial court.”

(Pet. 6) '

As the Supreme Court in its opinion succinctly stated

the facts thus (Pet. App. p. 27):

‘“‘At the time of the occurrence, plaintiff was 48

years old and had been continuously employed by

defendant as a railroad blacksmith for 19 years +

(R. 2, Abst. 73). Plaintiff did most of his work at

a blacksmith forge located in a blacksmith shop

near tracks 4 and 5 in what is known as the repair

or ‘Y’ yard (R. 2, Abst. 39-40, 90, 164, 256-257). His

duties involved the forging of parts for freight

cars, such as pin lifters, stirrups, grab irons, brake

levers, etc., in the blacksmith shop (R. 2, Abst. 75, 90,

165, 257). Sometimes he went out into what are

called the ‘Y’ and ‘Z’ yards to assist in making

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repairs to cars loaded with. perishable freight, emer-

gency war material, and the like, known as ‘hot’

ears (R. 2, Abst. 54-56, 256-258, 75, 163-167, 177-178).

Although the evidence was conflicting, there was tes-

timony that plaintiff frequently went into ‘Z’ yards

to obtain materials when the storeroom did not have

the kind of steel he needed for repairs and that he

had been told to do this by his superiors (cf. R. 2,

Abst. 256-258, 284-285, 81-82, 91-92).’’

The accident occurred on Track 15Z (R. 426, 436, Abst.

78-80.) Z yard was made up of live tracks (R. 504,

Abst. 93), while the rip tracks or repair yard was com-

posed of tracks 4, 5, 6 and 7 (R. 322, Abst. 57). 15-Z

was known as the bad order track and cars on it event-

ually came to the rip tracks for repair (R. 412, Abst. 75).

That Respondent’s duties took him into the Z yard was

obvious.

One witness pointed out that he saw Bonnier in the

Z yard practically every day since he had been em-

ployed by the Petitioner in 1946. Respondent would some-

times be on 15-Z to get materials from the scrap car

when they didn’t have it in the storeroom. When the

material was not on hand, he had to go out into the

yard and get it. There were two or three possible

places, the cars on 15-Z and those in the W yard (R. 214,

Abst. 36, 37. (It is to be noted that Track 15-Z is the

storage track for bad-order cars and is not track on

which the scrap car is kept at the scrap dock.) (R. 170,

301, Abst. 54, 28). Another testified he worked in the

Morton Park Yard from 1922 until 1947 and had seen

Respondent straightening something on a car located on

track 15-Z, saw Respondent going out several times after

material and picking up different pieces of iron. Ac-

cording to him, Respondent was frequently in the yard

a

gathering up material and drawing patterns. (R. 175, 176,

Abst. 28.)

Witness Barber, during his employment in the Morton

Park Yard, saw Respondent on several occasions go out

in places all over the yard to get scrap material to fix

up the different cars that would come in. Respondent

got this scrap material wherever he could find it. (R. 245,

Abst. 41.)

Witness Pasczak likewise stated that when he worked

in the yard as a car repairman he received orders from

Mr. Krupka or Mr. Oestmann to take scrap from cars in

the yard. R. 376, Abst. 66.) These were Respondent's

superiors.

Respondent himself testified that on a number of occa-

sions he brought in scrap from the ears in the presence

of Mr. Krupka and Mr. Oestmann. Indeed, about a week

before he was injured, he brought in some chains which

he found on track 28, apparently thrown from a serap

ear, which was used for company work. (R. 443, 444,

Abst. 81.)

Then, too, he stated that he had been directed by

John Oestmann and Joe Krupka, both his superiors, to

take materials off a scrap car when he needed it. (R. 441,

Abst. 81.)

Respondent, after he had completed his lunch, walked

out of the shanty, intending to ‘‘look down’’ on the bad

order tracks to see if there was anything for him to do.

Only ‘‘heavy work’? was being done. This was out of

his field. (R. 423, 424, Abst. 77, 78.) He went to track

15-Z, 100 to 150 feet from his shanty (R. 412, Abst. 74).

15-Z is a bad order track, and cars stored there eventually

come to the repair track. If parts are needed for them,

.

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he makes them. (R. 415, 416, Abst. 75.) The car nearest

to him on 15-Z (R. 424, Abst. 78) was the gondola in-

volved in the occurrence. Immediately west of the gon-

dola was a box car with about 5 to 10 feet separating

the cars. The gondola had been bad-ordered because

of the sill step. Respondent made a pattern for the sill

step using paper, ruler and pencil. (R. 428, Abst. 78.)

About 20 to 40 feet east of the gondola car was a

standing locomotive. (R. 429, Abst. 78, 79, R. 973, Abst.

189.) It was not the custom and practice to switch other

railroad cars into standing cars when a locomotive was

standing 20 to 40 feet from the railroad cars. (R. 430,

Abst. 79.)

Respondent spent three or four minutes making a

pattern, After making the pattern, Respondent looked

up and saw material on the car which he could use in his

work. It was a 12x16 inch flat plate of steel located

on the southwest portion of the ear. (R. 573, Abst. 103.)

His sole purpose when he walked toward the gondola

car was to see what it was bad-ordered for and to make

a measurement. (R. 566, Abst. 102.)

He wanted to use this plate on the air drum on the

bottom of the old Pennsylvania cars. He had a Pennsyl-

vania car in the repair tracks that day. It had been in

there about four weeks, and he had done some work on it.

(R. 574, 575, Abst. 104.)

Respondent did not look at any tag on the car other

than the bad order ticket, and did not attempt to- ascer-

tain whether the car belonged to some other railroad

than the Petitioner. (R. 563, Abst. 101.)

To the west of where Respondent was located on this

east and west track was a west end crew. It was en-

gaged in making a flying switch, an extra-hazardous

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the Supreme Court of Illinois, is to the effect that if Re.

of the eqvurvence? Obviously ast Acoume be wae in pared

whake cromeing om the path ia fromt of the guacmis car. or

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In Meader ¥. Hotel Grower, 9 So. (3d) 782 (Miss),

(1942), the plaintiff was injured on the premises of the

defendant hotel. The defense interposed was that he had

come there for the purpose of engaging a prostitate who

wae registered there, and that the defendant's hotel was,

in fact, a disorderly house.

In disposing of this so-called defense, the Court said:

oe Tone cae Oo panda & pie pil >

plicit im the maxion x malo nem oritur actio, his

injery meuaet have beew suffered while and as « proxi.

mate revalt of committing an illegal act. The enlawful

act must be at cace the source of both bis criminal

ee oe oe The injury must be

traceabie to hee owe breach of the law and such breach

mast be an integral and essential part of bie case,

Where the riclation of lew ie merely « condition aad

sot & contribeting couse of the injury, « recovery ix

mbt omy gows to the eetem of damages?

Be alee, te Rapes © Braces Motel Comp. 290 New York

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return at an early hour the nex morning, the plaintiff

was injured on defendant's premses.

The court charged the jury tht the duty of the Peti.

tioner to the Respondent was thesame as that owing any

other guest. This was held prope:

It is, of course, fundamental hat the F. E. L. A. is

founded on negligence, and the paintiff assumes no risk.

Then, too, plaintiff's conduct is na a defense to any negli-

gence om the part of the employe which causes in whole

or im part his injury, but is admasible only in mitigation

of damages. So long as the emplovee proves the defendant

railroad guilty of negligence wheh in whole or in part

contributed to cause the injury, ‘he case must be given

the jury. (Tiler v. Atlantic Coastine, 318 U. 8. 54).

And how has this court applie the doctrine of proxi-

mate cause in PF. EB. L. A. actions’ Tennant v. Peoria and

=

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‘*What the employee wants and needs is a reasonably

safe place to perform his duties. He is not concerned

with, and indeed cannot know the technicalities of

ownership, rental, lease, or reciprocal exchange of

facilities of an endowed railroad system * * * the

employer exercises exclusive choice both as to the

place of work and control over safety factors, it is

therefore not unreasonable to charge him with the

duty of providing him with a safe place to work.’’

(Butz v. Union Pacific R. R., 233 Pac. 2d 332, Utah,

1951.)

Because the employer is the master of the situation and

the employee like Gunga Din has ‘not to reason why,"

we have the employer fastened upon him the positive non-

delegable and continuing duty to furnish a safe place for

the employee within which to work, regardless of where

the emplovee may be.

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Before discussing the matter of Petitioner's negligence,

we feel constrained to call to the attention of the court

the character of the cases relied upon by Petitioner.

Toledo, St. L. 4d W. Ry. Co. ¥. Allen, 76 U. 8. 165, cited

by Petitioner, has been specifically overruled by this court

on two occasions in Tiller v. Atlantic Coast Line R. R.,

318 U.S. 54, and later in 323 U. S. STS. See the footnote to

m8 U. 8. 54, 58 Bo also is C. #0. R. Co. v. Mihas, 380

U. & 102, although impertinent here, an overruled case.

The Mihas cane has as its foundation C. 4 O. R Co. v.

Viren, 271 TS. 218. The Nirow case is the basis of the

Allee deeston

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Sumney v. Southern Ry. Co., 89 Fed. (2nd) 437, was

decided prior to the 1939 Amendment (45 U.S.C.A. 51 e

seq.), and turned on the doctrine of Assumption of Risk.

(See p. 441, opin.).

Although, ‘‘the whole may be greater than its parts.”

and, ‘‘defendant should not be allowed to take the bundle

apart and break the sticks separately’’ (U. P. R. v. Hadley,

246 U. S. 330,) there are several distinct facets to Peti-

tioner’s negligence. Consider them.

We have already pointed out how in this yard where

pedestrians, including yard clerks, switchmen, oilers and

others ( Abst. 55, R. 309, 310), there was a path across track

15-Z from a parking lot east and north of a switch

shanty near where the accident occurred. Then too, the

men crossed track 15-Z to go to the shanty to eat lunch

(R. 1041, 1372, Abst. 272, 280). We have already demon-

strated how the west end track was making a flying switch,

known as one of the most dangerous operations in rail-

roading. The member of the switching crew nearest the

accident was 28 car lengths or about 1400 feet west of the

scene of the accident.

We have already discussed how five cars were pushed

in against nine standing cars, and how the cut of 14 cars

moved about 240 feet( R. 1198-1337, Abst. 240-270), before

striking the 14 standing cars with such violence so that the

eut of 28 cars continued west, striking a box car and then

hit the gondola car on which Respondent was with “‘an

awful force like the explosion of a bomb” (R. 436, Abst. 90)

and ‘‘with a big noise,"’ as Cxaja said—so loud that his

attention was attracted to the scene (R. 978, Abst. 190)

Is it not plain that in order for 9 standing cars to be

struck by a cut of 5 cars, move 250 feet, strike another

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cut of 14 standing cars with the train of 28 cars moving

until a violent coupling is made first with a box car and

then with a gondola car, terrific force is required? Whether

the train running unattached from any locomotives and

with no means of controlling it, was handled with due care

was to be decided by the jury. As long ago as 1902, in

Texas € P. Ry. Co. v. Behymer, 189 U. S. 468, 470, you

pointed out how what ought to be done is fired by standard

of reasonable care, and what is usually done is merely

evidence of what ought to be done.

Then, too, Respondent's own testimony was: ‘‘I was hit

an awful force just like a bomb exploded. That is not the

usual way of making the coupling and I have never seen

ears pushed np against cars like that. That is not the

usual way a coupling is made’’ (R. 436, Abst. 80). This is

in itself evidence of negligence. See Hamilton v. Southern

Ry. Co., 158 S.E. 75, certiorari denied, 284 U. S. 636:

Teras & Pacific Ry. Co. v. Behymer, 189 U. S. 468; Texas

@ Pacific Ry. Co. v. Archibald, 170 U. S. 665, 673.

In re Failure to Have the Hand Brakes Set.

The Petitioner did not have the hand brakes set on any

of these cars as is obvious from the fact that the nine

ears when hit by the five moved forward six car lengths

struck another group of 14 cars and caused 28 cars to

move until the forward movement was terminated with

this violent crash. As one of the witnesses stated that

when the brakes on cars ona track are not set and another

cut of cars comes into them, they will move and the

greater number of the cars, the greater the movement of

the cars will be (R. 1350, Abst. 274). As Meins, the fore.

man on the east end job stated, that when the tracks are

empty, the first or second car is ridden down and an-

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chored (R. 1361, Abst. 277). Although he was working

on the east end, the movement would still be the same.

But none of the cars at the end of 15-Z was anchored!

Otherwise they would not have moved as they did.

In re Failure to Have a Rider on the Cars.

Although there were pedestrians in this yard, although

the east end of track Z was crossed by men on foot, al-

though none of the cars standing on that track was an-

chored, the defendant shoved a cut of cars into it without

being able to see what the situation was or without, in

fact, knowing the condition of the cars. It did this act

without having a ‘‘rider’’ on the cars or one who could

apply the hand brakes, although this practice was in-

dulged when putting cars into the same track from the

east end.

Petitioner’s position is that there can be no negligence

since Petitioner always did its work that way. We have

already indicated by the Behymer case (Texas ¢ P. Ry. Co.

v. Behymer, 189 U. S. 468, 470) that what ought to be

done is determined by the standards of reasonable care,

and not by what is customarily done. The test then is:

did the railroad do what ought to have been done?

Such omissions as failing to determine whether the

hand brakes were set on standing cars into which moving

cars are to be kicked, is demonstrative of an unsafe method

of operating with the brakes released. Any impact is cer-

tain to cause motion.

Anyone, be he engine man on his way to the shanty, or

employee coming to or, going from the parking grounds,

would be cut down by the movement of the gondola, if he

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happened to be crossing the path across track 15-Z at the

time the cars came together.

Then, too, Petitioner in its movements from the east

had a rider on the cars to apply the hand brakes. Why

did it not do so when it was cutting cars in from the west,

cars over which it had no control, cars running unattached

to any locomotive, cars which might run into a place where

men would be crossing or working?

Whether there are other safety measures which could

be taken, and were not taken, is a recognized basis for

recovery under the Act. See Wilkerson v. McCarthy, 336,

U. 8S. 53; Boston & M. R. R. v. Meech, 156 Fed. 2nd

109, (Petition for Certiorari denied 329 U. S. 763).

In Re Custom.

We have already pointed out that there was a custom

in the yards not to shunt detached cars into standing

cars when there was an engine within 20 to 40 feet of

the standing cars (Add’l. Abst. 3, 4).

Respondent knew that the Petitioner would not shunt

cars into the standing cars with an expensive piece of

equipment within 20 to 40 feet of the end of these stand-

ing cars, Whether Petitioner adhered to the custom

went to the question of Petitioner's negligence. See Texas

@ P. R. R. v. Behymer (189 U.S. 468, 470) to the effect

that a violation of custom may be evidence of negligence.

Aside from the question of custom, the Petitioner's

duty to use due care was ever present. See Terminal R.R.

v. Schorb, 151 Fed. (2nd) 361.

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